Fed. Dist. Court in TN Dismisses Equal Protection and Due Process Claims Arising from the Rejection of a Plan for Re-Subdivision

Plaintiff, a resident of Memphis, Tennessee, who attended a Memphis City Council public meeting, which was a “remand hearing,” during which Plaintiff sought to overturn the rejection of his plan for re-subdivision of a lot he owned in the Belle Meade Subdivision. The plan had been rejected by the Land Use Control Board (“LUCB”), an agent of both the City and of Shelby County. Plaintiff asserted that he had filed his application for re-subdivision in 2011 during the effective period of the original version of the Unified Development Code (“UDC”). The UDC was later amended several times through amendments adopted by the City Council and Shelby County Board of Commissioners. Plaintiff alleged that the Defendants did not apply ZTA 14-001, the then-applicable zoning law, or any amendments to the UDC, when denying his application, and that Defendants violated his due process rights by enacting ZTA 15-001, which was initiated by the City Council and drafted by Josh Whitehead, director of planning for the Office of Planning and Development (“OPD”), under the direction of Allan Wade, counsel for the City Council.

ZTA 15-001 amended UDC Section 9.7.7H to read that the Section “only applies to proposed subdivisions within the City of Memphis and that the LUCB or City Council may reject a preliminary plan if…the subdivision is not in keeping with the character…in the neighborhood.” Plaintiff alleged that ZTA 15-001 was not enacted in accordance with the UDC 9.3.3 Application Requirements, which required that an application for the amendment be submitted at least thirty-five days before the LUCB could consider it. Moreover, Plaintiff alleged that there was not adequate public notice of the hearing to consider the amendment and that a staff report was published on April 30, 2015, stating that the amendment resolution had been passed on May 5, 2015, which suggested that, in violation of the Open Meetings Act, advance notice had been given to Whitehead that the resolution would pass. As of the date the court decided this case, Plaintiff no longer owned the property he sought to subdivide, since he sold his entire interest on October 16, 2015. In this case, the court reviewed Defendant Shelby County Government’s Motion to Dismiss Plaintiff’s Amended Complaint and Defendants City of Memphis and Memphis City Council’s Motion to Dismiss Plaintiff’s First Amended Complaint.

At the outset, the court granted Shelby County’s motion to dismiss, given the lack of involvement of Shelby County in the consideration and subsequent enactment of ZTA 15-001. However, the court determined that the City Defendants were not immune from liability under 42 U.S.C. § 1983 because plaintiff plausibly alleged a pattern of conformance, as prior years’ amendments were enacted following a particular procedure that was not utilized when enacting the 2015 amendment. Despite this, Plaintiff’s substantive and procedural due process claims were dismissed. Plaintiff failed to assert a protected property interest because he did allege that he was deprived of economically viable use of his property, but rather only that he was denied the right to subdivide it. Furthermore, while Plaintiff did sufficiently allege a protected liberty interest, this claim failed because he did not allege facts to support that his liberty interest was denied with “extreme irrationality,” or that he had been denied notice and an opportunity to be heard.

The court next found that the City of Memphis did not violate Plaintiff’s equal protection rights because similarly-situated individuals, those seeking to subdivide properties within the City of Memphis, were treated no differently under ZTA 15-001. Plaintiff’s conspiracy claim also failed because Plaintiff had not asserted membership in any class that was the basis of discriminatory animus by any alleged conspirator, and because employees of an entity cannot conspire among themselves because they are treated as one entity. Finally, the court granted dismissal of Plaintiff’s Open Meetings Act claim, as notice of the meeting was given in the Daily News, and there was no allegation that the proceedings were conducted in secret. Moreover, the court found that failing to specify the content discussed did not make the notice inadequate, in light of the multiple purposes of the meeting.

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